April 13, 1965

Mr. CELLER. Even within the period.

Mr. DUNCAN of Oregon. He could take affirmative action within the period and thereupon the President of the United States will reassume th . e duties and powers of his office?

Mr. CELLER. That is correct.

Mr. DUNCAN of Oregon. If he did not do that, he would continue as Acting President during all intervals of time necessary for the Cabinet and the President to transmit their letter and the Congress to take such action as may be necessary.

Mr. CELLER. It is interesting to note while the Senate did not do this, we put a time limit of 10 days on it. We insisted the Congress must act in 10 days. If it does not, the President goes back in.

Mr. DUNCAN of Oregon. I thank the gentleman. I think we have added to the merits of this bill by this colloquy.

lVIr. Chairman, if the gentleman will yield further, I should like to say that the gentleman has performed a great service-both he and his committee-in bringing this bill to the floor of the House. I think it fills a very great need. I have a question in my own mind whether it goes far enough. Is the gentleman satisfied that the law is clear as to the situation that would prevail in this country were a President-elect were to become incapacitated or die between the time of his election and the time of his inauguration?

Mr. CELLER. No. As I said in my opening remarks we do not cover everything. We do not cover everything that can be conjured up by someone's imagination. The bill does not cover a case after election and before inauguration.

Mr. DUNCAN of Oregon . This, I would like to say, is I think, an area that still demands the attention of the Congress.

Mr. Chairman, I thank the gentleman for yielding.

Mr. McCULLOCH. Mr. Chairman, I yield 20 minutes to the gentleman from Virginia [Mr. POFF].

Mr. POFF. Mr. Chairman, the House is proceeding to the business the Nation has neglected for more than a century. Tribute is due many. None is more deserving than the American Bar Association. Through the untiring efforts of its officers and members, a consensus has been reached which heretofore has been thought impossible. This consensus, like all others, represents some degree of compromise. But it represents no compromise to expediency. It accommodates a variety of schools of legal thought, none of which can arbitrarily be called wrong or unworthy, and all of which unite in the conclusion _ that action is not only necessary but urgent.

Tribute is due, too, to the chairman of the Committee on the Judiciary. First, he has been an eloquent, effective advocate. Second, he has been an impartial, fair-minded arbiter. Always intellectually honest, he has stood firm when firmness was necessary but has yielded when logic dictated. The bill before us properly bears his name, but because he has been just, it contains many amendments which all together represent the composite judgment of the committee at large.

During the entire course of the hearings and deliberations, the committee itself has conducted its business in a manner which reflects great credit upon the American system of lawmaking. Not one partisan consideration was advanced. Not one word of bitterness was uttered. Debate was vigorous, but always constructive. The whole performance makes me proud to be a member of the Committee on the Judiciary.

We are considering a constitutional amendment. Why not a statute? Some consider a statute sufficient. In recent years, the great body of legal opinion has held that so far as the question of Presidential. inability is concerned, a constitutional amendment is not only the proper legal course but the wise course. The difference of opinion arises from the language of article II, section 1, clause 5, which reads as follows:

In case olf the Removal of the President from Office, or at his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the s · same shall de · devolve on the Vice President , and the Congress may by Law provide for the case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer sha!ll act accordingly, until the Disability be removed, or a President shall be elected.

That language was first brought into sharp focus in 1841 when President William Henry Harrison died in office. Because it was uncertain whether the "powers and duties" would "devolve" or the "office" would devolve, the question immediately arose, "Will Vice President Tyler become Acting President or President of the United States?" Tyler answered the question by taking the oath of office of President. Since then, the "Tyler precedent" has been confirmed seven times.

But Tyler ' s answer concerning succession following death did nothing to clarify the question of succession following inability. Indeed, it complicated that question. Death and inability both are treated in the same clause of the Constitution. Thus, it was argued that whatever should "devolve on the Vice President" on account of the President's death would also devolve upon the Vice President on account of the President's inability; and if what devolves in one case is the office itself, then it must be the office in the other case. The conclusion of this argument was that if the Vice President should assume the Office of President on account of the President's inability, the displaced President could not thereafter, even if he · covered, reclaim his office. Such constitutional scholars as Daniel Webster . so declared.

In the face of such an argument, it is little wonder that Vice Presidents have been reluctant to assume the mantle of the Presidency, even in the most urgent crises. When, in 1881, President Garfield lay incapacitated from an assassin's bullet some 80 days, Vice President Arthur would not act. The same was true in 1919 when President Wilson suffered a stroke which rendered him all but helpless.

In these two crises, surely Congress would have passed a statute on Presidential inability if Congress felt it had the constitutional authority to do so. There were those who felt that Congress had such authority. They pointed to the "necessary and proper" clause and to the language in article II which reads that "the Congress may by Law provide for the Case of Removal, Death, Resignation, or Inability." But the remainder of that clause gave . the Congress pause; it gives the Congress power to act only in case of the inability of "both the President and Vice President." Theimplication is that Congress has no power to act by statute when only the President is disabled. This implication was tacitly acknowledged by the Congress in 1792 when it passed the first Presidential Succession Act. That Congress was peopled by contemporaries of the authors of the Constitution, and the statute significantly failed _ to provide for succession when only the President was disabled.

So far, I have dealt only with legal justification for a constitutional amendment. There is a pragmatic reason as well. ~o long as there is any question about the efficacy of a simple statute, such a statute would be subject to attack. Such an attack would come at a time when the Nation could least afford it--when the President becomes disabled or when the disabled President recovers and seeks to reclaim his office.

Yet, I have been asked, why could not we proceed by both routes? Why could we not have a brief constitutional amendment which simply empowers the Congress to pass a statute dealing with Presidential inability? The answer is that we could, but in my judgment, we should not. I have two reasons. First, in a matter as vital to our national interests as the continuity of Presidential powers, stability and durability are important; only a constitutional amendment can guarantee this. Second, the doctrine of separation of powers, which has served us so well for so - long, would be blurred by the dual approach. Presidents and Vice Presidents are not always popular with Congress, and at a given time, one may be more popular than the other. Sometimes, the political party which controls the Congress is not the same political party which controls the White House. If a simple majority of the legislative branch is to have the power to make these rules one day and to change them the next, the executive branch will be subordinate instead of coequal and the head that wears the crown will indeed be uneasy.

Then there are those who ask why we cannot just forget about both constitutional amendments and statutes and deal with the problem as we have in the past by written agreement between the President and Vice President. There are several answers to that question. A private agreement does not have the same effect as law, and it is questionable whether the President can in such an informal, bilateral fashion lawfully delegate · powers conferred upon him by the Constitution, by treaties and by congressional statutes, to another person. The question is serious enough to invite legal challenges to every domestic act, and every function in the :field of foreign relations would be under a cloud. Moreover, these bilateral agreements have never provided, and in the nature of things could never provide, for an enforceable settlement in event of a dispute about whether or not the President is disabled. The only real function these a g reements have served is to dramatize the urgency of having a definitive mechanism built into the basic law of the land where it is visible to all and where it will remain constant from one administration to the next.

When we speak of the problem of Presidential inability, we are speaking of two caJte g ories of cases. The :first is that in which the President reco g nizes his inability-or the imminence of his inability-and wishes voluntarily to vacate his office for a temporary period. The classic example is when the President expects to undergo an operation . The second category is that in which the President, by reason of physical or mental debility, is unable to perform his duties but is unable . or unwilling to make a rational decision to relinquish the powers of his office, even for a temporary perio~ ·

Section 3 of the bill provides for the :first category. Simply by sending a written declaration of inability to the heads of the two Houses of Congress, he makes it possible for the Vice President , as Acting President, to discharge his duties so long as the President feels that his inability has not terminated. . When he chooses to do so, he may reclaim and reoccupy his office by sending another written declaration to Congress. Unlike the second category, . ory, his declaration of restoration is not subject to challenge by the Vice President and Cabinet. The reason for this distinction is obvious. A President would always hesitate to utilize the voluntary mechanism if he knew that a challenge could be lodged when he sought to recapture his office. Section 4, which now includes what was originally section 5, provides for the second category of cases. There are two illustrative examples. One is the case when the President by reason of some physical ailment or some sudden accident is unconscious or paralyzed and there fore unable to make or to communicate the decision to relinquish the powers of his Office. The other is the case when the President, by reason of mental debility, is unable or unwilling to make any rational decision, including particularly the decision to stand aside.

It is the second category of cases which has given scholars so much concern. The problem is best defined by a series of questions. Who :first raises the question and who makes the decision concerning inability? Should the word "inability" be defined? What procedure should be used in restoring the President to his office after he has recovered? These questions and questions subsidiary to each of them have been answered in section 4.

The original draft required the Vice President to initiate the action and required only the subsequent concurrence of the Cabinet that the President was disabled. The Vice President historically has been reluctant to take the :first step for understandable reasons. The present version of section 4 is in the conjunctive and places the power and responsibility jointly upon the Vice President and a majority of the Cabinet or "such other body as Congress may by law provide." In the second step, these same people make the decision about inability and transmit that decision in writing to Congress, upon the receipt of which “the Vice President shall immediately assume the powers and duties of the office as Acting President." While others have been proposed, these are the people who should ha;ve this power and who should make the decision. The Vice President, a man of the same political party, a man originally chosen by the President, a man familiar with the President's health, a man who knows what great decisions of state are waiting to be made, and a man intended by the authors of the Constitution to be the President's heir at death or upon disability, surely should participate in a decision involving the transfer of presidential powers. The same is true of the Cabinet whose members were appointed by the President and are closest to him physically and most loyal to him politically.

While the Vice President and Cabinet seem to be the ideal people to be entrusted with the power of decision, section 4 recognizes that future experience may dictate the naming of "some other body" by the Congress to act with the Vice President. Presently, the Cabinet as defined in title 5, United States Code, section 1 consists of 10 members. It is possible that an even-numbered Cabinet might divide evenly, thus effectively stultifying the system erected in section 4. For this reason, . on, or some other good reason, Congress may sometime :find it necessary to name some "other body" which of course it could do simply by adding to the Cabinet as the decisionmaking body one non-Cabinet member.

The American . Bar Association and your committee struggled with the question of defining the word "inability." It was decided that it would be unwise to attempt such a definition within the framework of the Constitution. To do so would give the definition adopted a rigidity which, in application, might sometimes be unrealistic. In my judgment, it would also be unwise to attempt such a definition by statute. The slightest imprecision in such a definition would be the target of legal attack if and when it should become necessary to exercise the procedures of section 4. It is highly unlikely that the responsible Government officials entrusted with this great power would abuse it by declaring a President elected by the people of this country disabled when in fact he was not, especially when the Congress is given the ultimate voice in this determination.

The procedures to be used . in restoring a disabled President to his office following his recovery constitute one of the critical phases of the problem. The procedures specified in section 4 deal with the problem in a careful, deliberate manner. Herein lies the principal difference between the House bill and the bill passed by the other body. Under the Senate bill, the President could resume his office after his written declaration of restoration to the Congress unless within 2 days the Vice President and a majority of the Cabinet send a written declaration to the Congress challenging his restoration. If under the Senate bill the Congress by a two-thirds vote upholds the Vice President's challenge, the Vice President would continue to hold the office as Acting President; otherwise, the President would resume his office. The difficulty with the Senate version was that the Congress, which might not even be in session, could delay by :filibuster or deliberate inaction for an indefinite period of time, during which the Vice President would remain in office. This difficulty is especially great if a majority of the Members of Congres8-:-but less than two-thirds-are hostile to the President.

The House committee felt that any delay on the part of Congress should inure to the benefit of the President rather than the Vice President. Accordingly, the House committee adopted two consequential amendments. Under the :first, the Congress, 'if not in session when it receives the Vice President's challenge, is required to assemble immediately. This mandate is self-executing, · requiring no formal call by the Acting President. Under the second amendment, the Congress is required to act within 10 days after receipt of the Vice President's challenge. This, too, is selfexecuting; if the Congress fails to act, the President will resume his office after the lapse of 10 days. In effect, the procedure as outlined under the House version gives the Congress three options:

First. The Congress can act and by a two-thirds vote uphold the Vice President's challenge.

Second. The Congress can act and by · one more than a one-third negative vote in either House, reject the Vice President's challenge.

Third. The Congress can allow the 10- day period to expire without acting at The net effect of the second and third options is the same; the President is restored to his office. The chief merit of the House version is obvious. Circumstances may be such that the Congress by tacit agreement may want to uphold the President in some manner which will not amount to a public rebuke of the Vice President who is then Acting President. The third option furnishes the graceful vehicle. And this system renders impossible the awful stalemate which would result from a :filibuster or deliberate inaction under the Senate version.

It will be observed -that the procedure :fixed in section 4 gives the Congress no voice in the decision for the initial involuntary removal of the disabled President. As soon as Congress receives the written declaration of inability from the Vice President and a majority of the members of the Cabinet, the President is removed and the Vice President becomes Acting President. However, the President who regards himself capable and objects to the Vice President's action is not left without recourse. He has the right as soon as he is removed to send Congress his written declaration of restoration, and at that point, the procedure for congressional review becomes operative.

The committee makes no claims that this bill is foolproof or that it covers every hypothetical case which might present itself to the inventive mind. If one assumes that the Vice President and most of the members of the President's Cabinet are charlatans, revolutionaries and traitors, we are foolish to attempt any solution. Rationally, we make no such assumption. Rather, we assume that the American form of government with its system of checks and balances is so structured, that the freedom of the American press is so secure, and that the conscience of the American electorate is so sensitive and its power so effective that rogues in public office are foredoomed to exposure and swift retribution. Certainly, we want a government of laws and not of men, but somewhere in the process of administration of the laws, we must commit our fate to the basic honesty of the administrators. Somewhere, sometime, somehow, we must trust somebody.

Mr. HORTON. Mr. Chairman, I ask unanimous consent that the gentleman from Ohio [Mr. McCULLOCH] may extend his remarks at this point in the RECORD.

The CHAIRMAN. Is there objection to the request of the gentleman from New York?

There was no objection. ·

Mr. McCULLOCH. Mr. Chairman, the House is now discharging one of its greatest responsibilities in proposing an amendment to our Constitution. The proposal before us, House Joint Resolution l, is one of the most important and challenging issues of our time : An issue that we can no longer ignore or postpone.

One of the most important procedures in our Republic is the orderly transition of Executive power. With our country's global responsibility, with present world turmoil and upheaval, and with everpressing domestic problems, our country must always have continuity of capable, dynamic, and certain leadership. Our system of government could be susceptible to forces of disruption during a period of Executive transition; therefore we cannot afford a breakdown, or a slowdown, during such transition.

Despite this critical need for a swift sure, orderly procedure to insure con- tinuity in Executive leadership, the Constitution contains no provision for filling a vacancy in the office of Vice President. The Constitution does not define presidential inability. It does not set forth the conditions under which an acting President shall assume the duties of the office, and it does not set forth the procedure for recovery of the office by the President upon termination of his disability.

OUr country recently survived a tragedy of shocking proportions that resulted in an abrupt change in our Executive leadership. Thereupon, our country was without a Vice President for more than a year. At other times in our history, periods of temporary-yes, even permanent-presidential disability have raised serious questions as to the proper exercise of Executive power. In this space age we cannot afford the uncertainties, the risks of reliance upon pious hope and chance that things will work out all . right. Now is the time to face the problem. Now is the time to act-before the next crisis is upon us.

To cope with the problems of presidential inability and vacancies in the office of Vice President. We must provide the means for an orderly transition of Executive power in a manner that respects the separation of powers doctrine, and maintains the safeguards of our traditional checks and balances. I believe that House Joint Resolution l, as amended by the Judiciary Committee, answers these needs, and will undoubtedly correct the shortcomings of the Constitution with respect to presidential inability and succession.

The resolution has three basic purposes:

First. It provides that upon the occurrence of a vacancy in the Office of the President by death, resignation, or removal, the Vice President shall become President. This provision will settle once and for all the questions raised by the present language in the Constitution: When a President dies, does the Vice President become acting President or President? Does he assume the "powers and duties" but not the "Office" of the President?

Second. The resolution provides for the selection of a Vice President in the event of a vacancy in that office.

Third. It provides a method of determining when the Vice President shall serve as acting President in the event of the inability of the President, and also a method of determining when the President is able to resume the duties of his office following a period of disability.

In reference both to the question of Presidential inability and filling a vacancy in the Office of Vice President, one of the major considerations has been whether Congress could constitutionally proceed to resolve the problems by statute, or if an enabling constitutional amendment would Through the years, this controversy has increased in intensity among Congressmen and constitutional scholars.

In recent years, there seems to have been a shift of opinion in favor of the proposition that a constitutional amendment is necessary and that a mere statute would be inadequate to solve the problem. The last three Attorneys General who have testified on the matter have agreed an amendment is necessary, as have the American Bar Association, the American Association of Law Schools, and many State bar associations. The most persuasive argument in favor of amending the Constitution is that so many legal questions have been raised about the authority of the Congress to act on the subject of presidential inability without an amendment, that any statute on the subject would be open to criticism and challenge at the most critical time-that is, either when a President has become disabled, or when a President sought to recover his office. Similarly, the very division of authority concerning the power of Congress to act upon filling the office of Vice President is the most persuasive argument in favor of amending the Constitution. With this division in existence, it would seem that any statute would be open to criticism and challenge at a time when absolute legitimacy was most needed. It is for these reasons that I support the constitutional amendment approach as the best way to resolve the issues.

House Joint Resolution 1 provides that the President may, in his own behalf, issue a declaration announcing his disability. If he should fail to do so, or in the case where he is too ill to do so, then, the Vice President may do so if a majority of the Cabinet, or other such body as designated by the Congress, concur.

There is a belief among many people that, in the instance where the President fails to act, the Vice President and the Cabinet, or some other body, should be designated to make the choice. Some question the disinterest of the Vice President and the trust that the people may place in nonelected members of the Cabinet. Others believe that, for political and personal reasons, the Vice President and the Cabinet, having been selected by the President, may feel reluctant to act. In place thereof, the suggestion has been made that a commission be created which might be composed of Supreme Court jurists, elected leaders of Congress, and members of the Cabinet.

I believe that the Vice President must, of necessity, be granted a primary responsibility in such matters. I also believe that members of the Cabinet, because of their intimate contact with the President, must be made to share in this responsibility and duty. I further believe that such men in the past have been, and in the future will be, dedicated to the country's welfare and will act accordingly.

In order to provide a certain amount of leeway, however, the amendment provides that Congress shall have the authority, if it so chooses, to designate some other body than the Cabinet to pass upon a Vice President's declaration be necessary. of the President's inability.

The proposed amendment also provides that after a declaration of the President's inability through whatever means, and the assumption of the Office of Acting President by the Vice President, the President may resume the powers and duties of his office by issuing a declaration that his disability has terminated.

If it is believed, however, that the President's disability continues, the amendment provides that the Vice President, with the concurrence of a majority of the Cabinet, or some other body designated by the Congress, shall, within 2 days, declare in writing that such disability continues. Thereafter, Congress has 10 additional days to determine whether the President's disability does, inf act, continue.'

If Congress fails to act within that period or if it does not make a determination of continuing disability by a twothirds vote, the President shall resume his office. The burden, it will be seen, is placed upon the Vice President and the Cabinet to prove the continuance of the disability and not on the President who has the primary claim to the office. The Congress is designated as the ultimate arbiter because it is believed that, as the elected representative of the people, they share the greatest trust of the people.

Turning to the other basic problem of maintaining Executive leadership, the proposed constitutional amendment provides that when a vacancy occurs in the office · of the Vice Presidency, the President shall nominate a Vice President, with the confirmation by a majority of both Houses of Congress.

Today, far more than in earlier times, the Vice President participates in the leadership of the Nation. He is made a part of the Cabinet. He has been designated a statutory member of the National Security Council. He is Chairman of the President's Committee on Equal Employment Opportunity. He has been designated as the Coordinator of civil rights enforcement in the executive branch of government. He is Chairman of the National Aeronautics and Space Council. He is frequently designated as the President's representative in foreign and domestic matters. He is assigned to other important tasks. And, perhaps, most important of all, he is but one heartbeat from becoming President. The importance of the Office of Vice President means, then, that the country must always have a Vice President who is well informed and well schooled in the important issues that face the Nation.

The age we live in and the great sorrows and near-sorrows that have befallen our Presidents in the past make it all too clear that our Nation can no longer afford the luxury of constitutional machinery which permits a vacancy in the Office of Vice President or which does not provide for the contingency of presidential inability.

Mr. Chairman, I urge the adoption of the resolution.

Mr. HORTON. Mr. Speaker, I ask unanimous consent to extend my remarks at this point in the RECORD and include a letter. ·

The CHAIRMAN. Is there objection to the request of the gentleman from New York?

There was no objection.

Mr. HORTON. Mr. Chairman, I rise in support of the pending resolution, House Joint Resolution 1, a proposed amendment to the Constitution dealing with presidential inability and vacancies in the office of the Vice President.

An important step in our national history will be marked here today by the passage of this measure, and I urge my colleagues to give this joint resolution the two-thirds passage required for such amendments to the Constitution.

Further, I want to express my pleasure at the outstanding work done by the Committee on the Judiciary in bringing this resolution before us. I am particularly pleased to note the committee amendments which now are part of the · measure, as they parallel provisions I asked the committee to consider in my testimony on February 17.

Briefly, I would like to call attention to the two aspects of this legislation which have concerned me most and which I now feel have been corrected by the amendments reported with the resolution.

The first of these is making a clear distinction between disability of the President declared by himself and a disability involuntarily established as provided for in section 4 of House Joint Resolution 1. In the case of the President's own declaration, as provided in section 3, I firmly feel that he alone should judge when that disability is over. In other words, where the President has made the declaration of a disability by his own volition, there should not be the slightest question of his power to declare it at an end.

If such clear and precise language as this is not a part of the amendment, I fear we may foreclose the fullest possible use of the mechanism sought by the amendment. It is not likely that a President who felt he might encounter difficulty in regaining powers and duties he had voluntarily relinquished would be persuaded easily to make the voluntary declaration.

The other aspect is the committee amendment clarifying the necessity for convening an out-of-session Congress to decide a contradicting declaration of inability termination when that inability was established under the terms of section 4, that is, by the action of the Vice President with the concurrence of a Cabinet majority or such other body as Congress may have provided for this purpose. This 10-day rule, as it were, should satisfactorily answer any question that a recalcitrant Congress could withhold restoration of the President's powers by a kind of pocket veto.

Mr. Chairman, my general feelings on the need and desirability of amending our Constitution along the lines of the pending resolution grow from the gaps which I believe exist in present constitutional and statutory provisions.

In the case of a vice-presidential vacancy, no more time should elapse in filling that post than now prevails when it is necessary for the Vice President to assume the Presidency. Therefore, we need procedures that are immediate, uncomplicated, and self-implementing. In that regard, I find House Joint Resolution 1 does the job and, in fact, provides the same procedures which I introduced in House Joint Resolution 274 for this purpose.

On the question of inability, I believe the contents of House Joint Resolution 1, particularly as amended in the two respects I discussed earlier, will give the Nation a suitable system to protect and preserve the viability of its highest office. Mr. Chairman, the Monroe County Bar Association, through its board of trustees and its legislative committee, has done a great deal of work in studying the many proposals advanced in this area and in recommending certain clarifications its members feel would strengthen the proposed amendment.

I believe my colleagues should have the benefit of this work, and I take pleasure in sharing with the House at this time, a letter from my constituent, Dennis J. Livadas, Esq., chairman of the Monroe County Bar Association's legislative committee:

MONROE COUNTY BAR ASSOCIATION,

Rochester, N.Y., March 30, 1965.

Hon. FRANK HORTON,

Member of the Congress, House Office Building, Washington, D.C.

DEAR FRANK: I am pleased to report that the Monroe County Bar Association has approved a set of recommendations concerning the presidential succession. This action by the board of trustees is based on the work of our legislative committee over the past 2 years and has met with unanimous approval in both bodies.

We make the following suggestions concerning the provisions of the Senate and House Joint Resolution 1: Section 1 being the present law and section 3 allowing the President to declare his own inability are approved as proposed in the joint resolution. Section 2 we believe would be strengthened if the succession to the Vice-Presidency were spelled out in advance rather than left to the choice of the President. As successors, we suggest the Secretaries of State, Defense, Treasury and Justice, the Speaker, and the President pro tempore, persons obviously of outstanding ability and already experienced in the problems and the policies of the current administration. We believe that so high a constitutional office as that of the VicePresidency of the United States should never be open to Presidential appointment as a matter of course. , In section 4, we differ with the joint resolution by eliminating a Cabinet cabal and preferring the alternative of a congressional body in order to guard against any possibility of a palace revolution. Furthermore, the Congress being the elected repository of the highest constitutional prerogatives of our Nation, and an appointed group of administrators should have the first intimate looksee in so delicate an area as the disputed ability of the President of the United States to discharge his duties. And, in addition, following the tradition~! concept of the Senate as a Council of the States to advise and consent to the appointment of high Federal officers, we believe that the Senate by a twothirds vote should determi'ne the issue of the President's disability to function.

Section 5 of the joint resolution we consider . cumbrous, badly drawn, and difficult of application. In its place we suggest a simple set of alternatives that avoids the possibility of a conflict between the President and the Vice President by empowering the Senate for the same reasons and the same vote to resolve the issue of the President's ability to reassume his powers. We believe this would be a straightforward avoidance of any hiatus in power and confusion of prerogatives. '

We assume, of course, that once this constitutional amendment is enacted that the Congress will pass a detailed statutory implementation. In this connection, we recommend that the congressional committee referred to in section 4 be composed of the Speaker, the President pro tempore and the majority and minority leaders in both Houses. This automatically will insure some bipartisan and a majority of top-level congressional leaders who are not at all personally involved in the line of succession.

Your interest and your favorable consideration of our recommend · ations are earnestly solicited and deeply appreciated. Thank you for your courtesy and cooperation.

Respectfully yours,

DENNIS J. LIVADAS,

Chairman, Legislative Committee.

Mr. CELLER. Mr. Chairman, I yield 10 minutes to the gentleman from North Carolina [Mr. WHITENER], who has promised not to use it all.

Mr. WHITENER. Mr. Chairman, this legislation is important to the Nation because it involves a writing of a constitutional amendment. For that reason I believe it was appropriate for the chairman of our committee to have the matter considered by the full Judiciary Committee, thus giving all of us on that committee an opportunity to hear the testimony and to participate in writing language which will remove as much doubt as possible as to what is meant by the authors of this proposed amendment. As has been said by others, the chairman of the Judiciary Committee has been most diligent and capable in the consideration of this proposition. I believe that all of us would agree, by reason of the manner in which the hearings were conducted and the measure was written up, that we have a much better product than the one which came to us from the other body.

But there are some things upon which many of us disagree.

My good friend, the gentleman from Virginia [Mr. POFF], just stated with a great degree of positiveness that he felt there was no adequate authority vested in the Congress by the Constitution at present to deal with this proposition of presidential inability. I would not for one minute array myself against the distinguished gentleman from Virginia [Mr. POFF], but since I find that one of the great legal scholars; Thomas Cooley, felt differently from the gentleman from Virginia on this matter, I am going to aline myself with Mr. Cooley and say that I believe that with the exception of filling the vacancy of Vice President, the present provisions of the Constitution are completely adequate. The language of article II, section 1, clause 5, which appears on page 4 of the report is very clear to me when it says:

In case of the removal of the President from office, or at his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President, and the Congress may by Law provide for the case of removal, death, resignation, or inability, both of the President and Vice President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President shall be elected.

I take the position which was taken by the distinguished Senator from Minnesota, Senator McCARTHY, that we could accomplish the same purpose by statute which we seek to accomplish by this proposed constitutional amendment, with the exception of filling the office of Vice President when a vacancy occurs in that office by reason of death, disability, et cetera, of the Vice President or by reason of the succession of the Vice President to the office of President.

There is another matter in connection with this legislation that I think the gentleman from Kansas [Mr. HuTcHINsoN], a member of the committee, has brought out which deserves consideration. That is the language which is used twice in the bill, once in section 2 where it is provided that the President nominates the Vice President and the Vice President shall take office upon confirmation by a majority vote of both Houses of Congress; and the same language, which is used in section 4, except that there · it says where it is determined by a two-thirds vote of both Houses that the President is unable to discharge his duties, then he shall not be reinvested with his powers.

This language does not make it clear whether we are talking about a joint session of Congress or whether there shall be a majority vote of the total membership of both Houses under section 2 or whether under section 4 it will be two-thirds of the combined membership of the two bodies in joint session or, on the other hand, whether it relates to a separate vote being taken in the House of Representatives and a separate vote being taken in the Senate of the United States.

At this point I am wondering if the distinguished chairman of the committee the gentleman from New York [Mr. CELLER], could make it clear for the record what is contemplated, whether it is intended that confirmation be by a majority vote of both Houses in section 2 or a two-thirds vote of both Houses as mentioned in section 4. Does that contemplate, Mr. Chairman, that the two Houses, the Senate and the House, would meet in joint session, or does it mean that there would be a separate vote in the two bodies with a majority required if the provisions of section 2 were to apply with both Houses voting independently of each other?

Mr. CELLER. There is no joint session. It is a separate vote of each body, and when this terminology is found in House Joint Resolution 1, it has been interpreted by the Supreme Court to mean a separate body. I refer to the case of Missouri Pacific Railway v. Kansas, 248 U.S., page 276.

Mr. WHITENER. So I assume as far as the chairman of the committee is concerned, that we would expect in the event of a vote becoming necessary under either section 2 or section 4 of House Joint Resolution 1, that it would be done by the House of Representatives independently of any vote in the Senate and that the converse would be true?

Mr. CELLER. That is correct.

Mr. WHITENER. Mr. Chairman and Members of the Committee, another question which I raised in the hearings when we had Senator BAYH testifying was the use of the language in section 4 of the bill which reads, "the principal officers of the executive departments." The witness testified that the proponents contemplated that the members of the President's Cabinet would be the persons referred to as "principal officers of the executive departments." I believe that the Senate proposal used the words "heads of the executive · departments." As I understand it from reading what Professor Corwin has to say about it, there is no provision anywhere in the law for what we call Cabinet; that is, the President's Cabinet. That was a practice which sprang up and there is no statutory or constitutional authority for what we refer to as a Cabinet. So this raised the question of what do we mean by "the principal officers of the executive departments of the Government."

From a casual check of the statutes at the time we were having these hearings, within 2 or 3 minutes' time it appeared to me, if you look on page 58 of the hearings, that in our present Federal statutes we find title V, section 1, of the United States Code refers to executive departments as State, Defense, Treasury, Justice, Post Office, Interior, Agriculture, Commerce, Labor, Health, Education, and Welfare. But when we look at title 10, section 101, relating to the Defense Department we find this in subsection "Executive part of the department" means the executive part of the Department of Defense, Department of the Army, Department of the Navy, or Department of the Air Force, as the case may be, at the seat of government.

And then in title 42, section 201, subsection (e) the Congress defined "Executive Department," as follows:

The term "Executive Department” , tment" means any executive department, agency, or independent establishment of the United States or any corporation wholly owned by the United States.

Mr. Chairman, I have mentioned this in order that we might make the record clear. Does the chairman of . the committee and the ranking member, the gentleman from Ohio [Mr. McCULLOCH], contemplate that if at any time in the future there should be any interpretation that would give weight to title 42, section 201, subsection (e), in deciding who are the principal officers of the executive departments it would be contrary to the intent of the author?

Mr. CELLER. Mr. Chairman, I refer the gentleman to the report which makes legislative history; and I refer to page 3 of the report which reads in part as follows:

The subs , substituted language follows more closely article II, section 2, of the Constitution, which provides that the President may require the opinion in light "of the principal officers in each of the executive departments • * • ." The intent of the committee is that the Presidential appointees who direct the 10 executive departments named in 5 United States Code 1, or any executive department established in the future, generally considered to comprise the President's Cabinet, would participate, with the Vice President, in determining inability.

Mr. WHITENER. Then we are to understand that it is the intent of the authors of this proposed constitutional amendment--

Mr. CELLER. Or any additional members of the Cabinet that might be appointed · as heads of establishments in the future.

Mr. WHITENER. Then we are to understand that it is the intention of the framers of this proposed constitutional amendment, we are to make it abundantly clear that it is the concept of the committee and of the authors of the proposed constitutional amendment, that the language "principal officers of executive departments" refers to those now or hereinafter named i:::i title 5, section 1, of the United States Code?

Mr. CELLER. That is correct.

Mr. WHITENER. And not those named in any other statute?

Mr. CELLER. That is correct.

Mr . McCULLOCH. Mr. Chairman, will the gentleman yield?

Mr. WHITENER. I yield to the gentleman from Ohio.

Mr. McCULLOCH. Since our colleague brought me into the statement I would like to say to him that I join with the chairman of the committee in the definition of executive departments.

M r . WHITENER. I thank the gentleman. My purpose in taking this time was to try to resolve for the record some of the doubts which I felt might arise from the language. I certainly commend not only the gentleman from New York [Mr. CELLER], but the gentleman from Ohio and the other members of the committee who have joined together in trying to work out language and a policy which will best serve the Nation in the future. While I may have some misgivings as to the use of certain language I am sure that were I given authority to write it there would be more misgivings on the part of others. And so I shall go along with them and thank them for the fine work . they have done.

Mr. CELLER. Mr. Chairman, if the gentleman will yield, I want to say that the gentleman always, as he does now, shows rare wisdom.

Mr. WHITENER. I thank the gentleman from New York.

Mr. McCULLOCH. Mr. Chairman, I yield such time as he may consume to the gentleman from Pennsylvania [Mr. CURTIN].

Mr. CURTIN. Mr. Chairman, I rise in · support of House Joint Resolution 1, the bill presently being discussed by this honorable body and which proposes an amendment to the Constitution of the United States relating to succession to the Presidency and Vice-Presidency and to cases where the President is unable to discharge the duties and powers of his office.

Numerous authorities who have devoted a great deal of time to analyses of the processes under which our Government operates have been struck by the fact that our Constitution is silent on specific procedures to be followed in the event of a President's becoming gravely incapacitated during his term of office. This is a matter of longstanding interest to distinguished scholars who have undertaken studies of our unique kind of representative democracy. People in and out of Government, and notably Members of the Congress, over the years have questioned this apparent flaw in our Republic's structure.

Of course, the law does spell out the line of succession to a Chief Executive in the event of death. But it is mute with respect to a manner and method of determining the ability or inability of a President of the United States to discharge the powers and duties of his offlee in instances - where a critical illness or a disability of possible long-term duration may arise. Indeed, a President confronted by such misfortune of circumstance has no clear-cut instructions to which he can look for guidance under the language of our Constitution or of existing laws.

Article II, section 1, of the Constitution provides that the Vice President shall exercise the powers and duties of the President in event of the death, resignation, or disability of the Chief Executive, or his removal from office. To take care of further contingencies, a series of so-called succession acts were enacted by the Congress. The act of 1886 · established a line of succession starting with the Secretary of State and going through the order of executive departments. On July 18, 1947, a new law was enacted to bring the Speaker of the House and the President pro tempore of the Senate in line of succession ahead of the Cabinet members. The philosophy behind this action of 1947 changing the line of succession was that the spirit of the Constitution intended clearly that the Chief Executive should be an elected official rather than an appointive one. With this conclusion of reasoning, I fully concur.

But the knotty question remains--Who is vested with certain, sure authority to arrive at a determination of when is a President not able to discharge the powers and duties of his office? The answer is-No one, under existing processes.

I became interested in this problem soon after becoming a Member of Congress, and pursuant thereto, I introduced a resolution for a constitutional amendment in the 85th Congress, and I have re­ -introduced the measure, with certain modifications, in each succeeding Congress. The last resolution that I so introduced was on January 6, 1965, and is House J · Joint Resolution 129.

The resolution presently being considered differs from my resolution in its manner of approach as to the disability feature, and also provides for the filling of any possible vacancy in the office of Vice President, but I have no difficulty in supporting the present resolution, because it solves two problems, the solution of which are long overdue. In this day of challenge and stress, it is strongly advisable that the Congress clarify beyond any doubt or uncertainty the provision of the Constitution with respect to the execution of the duties of the President in the event of disability. This resolution should be passed.

Mr. McCULLOCH. Mr. Chairman, I yield such time as he may consume to the gentlemen from Vermont [Mr. STAFFORD].

Mr. STAFFORD. Mr. Chairman, I rise in support of House Joint Resolution 1 It is desirable and needed legislation. It initiates the process by which the Constitution can be amended with respect to succession to the Presidency and Vice-Presidency and to cases where the President is unable to discharge the power and duties of his office.

This resolution must have the votes of two-thirds of each House in Congress if it is to go to the people-it then must be ratified by three-fourths of the States within a period of 7 years if it is to become a part of our Constitution.

I hope it will. We have trifled with fate too long.

The bill provides that in case of the removal of the President, or of his death or resignation, the Vice President shall become President.

It makes provision for the nomination of a Vice President, by the President , when there is vacancy in that office; such nomination to be confirmed by a vote of a majority of both Houses of Congress.

It takes care of the situation when the President suffers disability, and is unable to conduct the affairs of his office and the procedure under which he may resume his powers.

Mr. Chairman, I have heard from many people in Vermont who support this legislation. Such support comes from people in every walk of life.

It is true that the Bar Association and the Junior Bar Association of Vermont support this resolution.

I was pleased in January of this year to introduce a bill-House Joint Reso~u­ tion ~48-identical was House Joint Resolution 1 prior to · committee amendments. I compliment the distinguished members of the Committee on the Ju~~­ ciary for the consideration afforded this bill and the constructive changes they have proposed for it.

I urge the adoption of . the resolution. Mr. McCULLOCH. Mr. Chairman, I now yield 10 minutes to the gentleman from Michigan [Mr. HUTCHINSON].

Mr HUTCHINSON. Mr. Chairman, when. we propose to amend the basic law of the land, the Constitution, this Co~­ gress exercises a much greater responsibility in my opinion than is the case when we simply write statutory law, b~­ cause once this proposal passes this House and survives a conference with the other body, if such be necessary, and is then submitted to the States, it is there- after impossible to make any ch_ange~ m it. The States' function of ratification, important and essential as that function is, is limited to simply saying "yes" or "no" to what this Congress proposes.

So, Mr. Chairman, I have been greatly concerned about the wording and the effect of the language that this proposal might encompass.

I would like to observe, as the gentleman from North Carolina [Mr. WHITENER] observed lawyers are not in agreement that a constitutional amendment is necessary to accomplish the purposes of succession in the office of the President, nor to determine the problem of disability.

Article II section 1, clause 5 of the Constitution'. as it is worded, admittedly has . caused some dispute through history. I believe that there is constitutional authority in Congress to deal with this problem through statute based upon the wording of the provisions of clause 5, section 1, article II of the Constitution. Mr. Chairman, the gentleman from Virginia [Mr. POFF] makes a very persuasive argument that it would be a terrible thing to have to test in the courts this question of constitutional power of Congress to deal with the subject of disability, because the test would come at a very inopportune and unfortunate time. On the contrary, Mr. Chairman, I am convinced in my own mind-and I believe that other Members have a right to be convinced in their minds--that based upon the manner in which the Constitution is being interpreted these days-broad construction you understand— certainly would follow that the courts would uphold a statute passed by this Congress and approved by the President of the United States providing for the procedures for determining disability.

All of the detail which this proposal before us will write into the Constitution would then be left in statutory form. If it did not work it could be much more easily remedied than will be the situation if the machinery provided under the Constitution for this proposal fails to work. If this Congress should write a statute which would be approved by the President of the United States, it is hard for me to believe that the Supreme Court of the United States would fail to find a constitutional Power for that legislative Now, with regard to some of the provisions of this proPosal which disturb me, the gentleman from North Carolina [Mr: WHITENER] mentioned, and in my additional views opinion printed in the committee report I call attention to, the wording on line 23, page 3, where in connection with the action by the Congress in confirming the nominee for Vice President submitted by the President, a confirmation by a majority of both Houses of Congress would be required. The chairman of the committee has in the RECORD today clarified this language according to his understanding, that this is not intended to authorize action of the Congress in joint session. Nevertheless, Mr. Chairman, there are proponents of this measure, organizations, which have strongly advocated that any confirmation by the Congress in filling the Vice President vacancy should be by joint session of the Congress, thereby diluting the strength of the Senate. In my opinion, I think the language would be much clearer if that language "of both Houses" were stricken, and the words "in each House" were written in.

I would like to ask the chairman of the committee, if such an amendment were offered would he object to the change in wording in that respect?

Mr. CELLER. I may say to the gentleman such an amendment is not necessary. Attorney General Katzenbach covered that very point, and said the vote would have to be separate in each House. That would not involve any joint session whatever. He cites a case where the Supreme Court interprets the language we have concerning "each House," which means no joint session, but a separate vote in each separate House.

Mr. HUTCHINSON. I thank the gentleman. We are making legislative history, but I am reminded of the way the Supreme Court has been recently interpreting some sections of the Constitution completely disregarding the clear legislative history, some of which was written even a century ago.

It would seem to me it would be better to have clear language in the Constitution itself than to attempt to clarify it by legislative history.

Mr. POFF. Mr. Chairman, will the gentleman yield?

Mr. HUTCHINSON. I yield to the gentleman from Virginia.

Mr. POFF. I wholly agree with the gentleman that action should be taken separately in each House. I suggest such an intent is amply borne out in the hearings conducted by the committee. I refer first to the testimony of Senator BAYH · appearing on page 45, second, to the testimony of Attorney General Katzenbach, which appears on page 95, and :finally the testimony of former Attorney General Brownell which appears on page 243. All three agree that the action would be taken separately in each House. I also suggest to the gentleman the point he makes in reference to section 2 would be equally applicable to similar language in section 4. · Mr. CELLER. I want to refer the gentleman to the statement of Mr. Katzenbach appearing on page 106 of the record, as follows:

First, I assume that in using the phrase "majority vote of both Houses of Congress" in section 2, and "two-thirds vote of both Houses" in section 5, what is meant is a majority and two-thirds vote, respectively, of those Members in each House present and voting, a quorum being present. This interpretation is consistent with longstanding precedent. (See, e.g., Missouri Pac . Ry. Co. v. Kansas, 248 U.S. 276 (1919) .)

Mr. HUTCHINSON. I thank the Chairman.

I would like next to make an observation with which I am sure the majority of the committee does not agree. To my mind a better solution to the matter of filling the vacancy in the office of Vice President would be to provide for the automatic assumption of the office by some other officer of the Government to fill the vacancy, rather than calling on the new President of the United States, the Vice President so recently elevated because of the death of a President, in addition to everything else, to be put in the Position of apPointing the new Vice President of the United States. The new President will not be able to put this matter off. To delay would not relieve the pressure on him. It would probably build it up further. As soon as the new President enters the Presidential stage, he will see vice-presidential candidates and their supporters in the wings.

There is a good case for simply writing into the Constitution that the Speaker of the House of the Representatives should become Vice President and the House would then choose a new Speaker. I am aware of the argument that under certain circumstances the President and the Speaker of the House, who would then become Vice President, might be of different parties. I recognize that there might be some difficulty there. I go back to the constitutional principle that as far as the Constitution is concerned, the only constitutional function of a Vice President is to preside over the Senate. Every one of the additional duties the Vice President is performing today is cast upon him by statute. If there were a situation in which the Vice President and the President could not get along, perhaps even if they were of the same party, and this has been true in the past and it may be true in the future, I daresay that changes in the statutory functions of the Vice President would be made. The Vice President would be taken out of these functions and he might be relegated to simply presiding over the Senate. within the purview of the Constitution that is the only function he has anyway. I submit we would have a better proPosal here if the Speaker were to become Vice President.

I am sorry that this proposal does not provide for such automatic, easy, and, I think, very logical method of filling the office of Vice President when that office is vacant.

I submit, too, that at the present time there are no constitutional powers in the members of the Cabinet. They are now advisory and always have been advisory. All of the constitutional executive power vests in the President. By this proposal we are for the first time writing into the Constitution powers vested in the members of the Cabinet.

The CHAIRMAN. The time of the gentleman has expired.

Mr. McCULLOCH. Mr. Chairman, I yield such time as he may require to the gentleman from Illinois [Mr. MCCLORY].

Mr. McCLORY. Mr. Chairman, the need for a constitutional amendment as embodied in House Joint Resolution 1 appears to be recognized generally by the American public. The need arises primarily because of two circumstances with which this Nation has had experiences of a most critical nature.

In the first place, whenever a vacancy in the office of the President occurs-­ such as has occurred on eight different occasions in our history-and the Vice . President succeeds to the powers and duties of the President, a void results in the office of Vice President. Accordingly, constitutional provision is needed for authorizing the selection of a Vice President.

This need is met in a direct manner in section 2 of the constitutional proposal. Although there has been long debate and extensive testimony on this subject, there appears to be general agreement with section 2 of the proposed constitutional amendment that the President shall nominate a Vice President under such circumstances, who shall thereafter take office only upon confirmation by a majority vote of both Houses of Congress.

The second need is this: Authority for a President to be relieved temporarily, or even permanently, of his duties and responsibilities under circumstances where he ls unable to continue in his capacity as Chief Executive of the Nation.

Again, this need may be satisfied by appropriate constitutional language in those instances where the President is without any mental or physical incapacity and where he wishes to be relieved of his duties and responsibilities on a ternporary basis. I am thinking, for instance, of a case where the President proPoses to leave the country for a period of time or where he finds it necessary to voluntarily be relieved of his duties for any other reason.

In such cases the President may transmit a written declaration to that effect to the Presiding Officers of the Senate and House, in which event the Vice President may serve as Acting President during such period as the President may declare. In such cases, the President would resume his duties immediately upon transmitting a written declaration in the same manner indicating the resumption of his constitutional powers and duties.

The more difficult aspect of this problem is where the President, although physically or mentally disabled, is unwilling or unable to relieve himself of the powers and duties of the office to which he was elected. It was my original view that constitutional provisions spelling out the method by which a President might be deprived of his powers and duties, as well as the method by which these powers and duties might be regained-whenever the original disability should be ended-were too complex for delineation in a constitutional amendment. Originally, I favored a simple statement to the effect that a determination of the inability of the President to continue to act as well as any resumption of his powers and duties should be left to the Congress to provide by way of legislation.

However, the committee has adopted language designed to establish a method whereby the President may be relieved of his powers and duties involuntarily as well as a further method whereby these powers and duties may be regained when any such disability is removed. Section 4 of the proposed Constitutional amendment sets forth these methods in clear and unmistakable language vesting only in the Congress authority to establish by law such body-other than the principal officers of the executive department-who must concur with the Vice President in declaring the President's inability in the first instance, as well as the removal of such inabiUty-where an involuntary removal has occurred.

I am satisfied that the mechanics of this section in which the Vice President, the members of the Cabinet and both Houses of the Congress ac~as set forth in section 4 of House Joint Resolution 1-establish a workable and entirely s · atisf actory method for meeting this difficult and extremely critical problem.

Certainly, the authority for any person other than the President to assume the powers and duties of that office should be contained in the Constitution itself. In other words, whoever is serving in the office as chief executive or carrying out the powers and duties of that office should be acting under constitutional authority and not mere legislative authority. House Joint Resolution 1 adequately meets this need.

Officers and members of the American Bar Association , as well as many individual lawyers specializing in constitutional law and the members of the House and Senate Judiciary Committees, all of whom are distinguished lawyers in their own right, have given full and careful consideration to this proposal. Undoubtedly, and quite understandably, there are some differences of opinion with regard to provisions of this proposal. However, I am satisfied that the overwhelming support which this measure has received from the full Judiciary Committee, as well as the great weight of the testimony in behalf of the proposal in substantially its present form, commends this proposed constitutional amendment to the Congress and to the people of the Nation and their respective State legislative bodies to which the proposal must be referred for ratification following favorable action by the Congress.

I am confident that the necessary three-fourths of those State legislative bodies will act favorably on the subject of ratification to the end that the needs which are met by this legislation will be fulfilled.

Mr. McCULLOCH. Mr. Chairman, I yield such time as he may desire to the gentleman from Montana [Mr. BATTIN].

Mr. BATTIN. Mr. Chairman, I take this opportunity to congratulate the committee on reporting out House Joint Resolution 1. I have listened to all of the debate because, as I read the bill originally, I had some serious misgivings about its operation. But I can say from the debate and from the answers that have been made both by the chairman of the committee and the ranking Members on the minority side, I feel this will do the job. I believe the members of the committee should be congratulated for the efforts they have made in bringing this legislation to the floor and to move it on to final adoption.

Mr. McCULLOCH. Mr. Chairman, I yield 10 minutes to the gentleman from New York [Mr. LINDSAY].

Mr . LINDSAY. Mr. Chairman, I wish to speak briefly on this question of disability. In so doing perhaps I can bring into clearer focus the need for a carefully written constitutional amendment. I do not suppose it has to be restated how pressing this problem has been in history and how much more pressing it is today when we live in the day of the hydrogen bomb, when we need quick decision and fast communication.

Members do not need reminding that President Garfield was in a coma for 80 days and during that period considerable business in both domestic and international affairs was impaired. We know further, as has been stated heretofore, that during the period of Garfield's incapacity there was deep division within the Cabinet, including the Attorney General, on the question of whether the Vice President had power to act. If Vice President Arthur proceeded to act, nobody would state with any degree of sureness whether his acts would be lawful and, as Members may know, Vice President Arthur under those circumstances refused to make any decisions at all.

President Wilson's disability was longer, over a year, and although the extent of his disability is a matter of debate, the fact of the matter was that his disability prevented his participation in the debates over the Versailles Treaty and the League of Nations.

This was a sensitive period in United States and world history, but nothing compared to the sensitivity of the modern day.

So the question is-and this bears on the ultimate question as to why we need a carefully worded constitutional amendment-who shall make the decision as to presidential inability? Is it a vicepresidential decision, or is it a general executive decision, or should it be a congressional decision, or a Court decision. There is a good deal of history on this. The question really first arose when President William Henry Harrison died of pneumonia in office. There were those who objected to Vice President Tyler's succession during the President's period of illness, and there were many more who objected to Tyler's succession to the Presidency even after President Harrison's death. The question was whether the Vice President really became President to fill out the unexpired term, or whether he just continued as Vice President and performed the duties of President.

Tyler first held the view that he would only act as President during the unexpired term. Then later, he apparently changed his mind and decided to assume the Presidency.

Seven other Vice Presidents have followed suit since then. In other words, all of them have decided that they were the President, they were not Acting President; they had not just the name, but the powers of office of President. They were Fillmore, Andrew Johnson, Arthur, Theodore Roosevelt, Coolidge, Harry Truman, and Lyndon Johnson. This has a bearing on the question of disability, it seemes to me. We are told that an examination of the original articles agreed upon by the Constitutional Convention showed that the delegates at that time agreed that upon the inability of the President to discharge the powers and duties of his office, the Vice President should exercise those powers and duties "until the inability of the President be removed." ·

The original thought of the framers of the Constitution was that the Vice President would act as the President in the case of the President's disability. This view finds support in the debates of the Constitutional Convention indicating that the Vice-Presidency was originally created to provide for an alternate Chief Executive who might function from time to time should the President be unable to exercise the powers and duties of his office. When this provision was stated in so many words and was submitted to the Committee of Style, it was revised and reduced to the simplified statement that we have now: "In the case of removal, death, resignation, or inability to discharge the powers and duties of the office, the same shall devolve upon the Vice President," and that is the way it has remained ever since.

What this really means is that we are talking about an Executive decision rather than a congressional or a court decision in the first instance. This interpretation, in fact, has been shared by several Attorneys General in the past. Before the Senate subcommittee, Attorney General William Rogers said that in . his opinion the Constitution invested in the Vice President initial determination as to the existence of an inability with respect to the President. . ent.

The same view was expressed earlier by Attorney General Herbert Brownell, who incidentally was th~ first governmental officer to draft and submit to the Congress legislation along these lines; indeed, the Bayh-Celler proposal is an almost exact restatement of the original Brownell proposal made to the Congress, the 85th Congress, I believe, on the occasion or shortly after the occasion of President Eisenhower's illness.

Attorney General Brownell at that time summed up what has been the legal opinion of all of his predecessors in this area in modern history. He said as follows:

At the time of President Garfield's illness in 1881, th'} gre a t weight of opinion favored the interpretation that Vice President Arthur, and he alone , could determine if the President was disabled. At that time most students of the Constitution said that the Vice President was obligated to exercise the powers of the Presidency during Garfield's illness; just as much as he was obligated to preside over the Senate or perform any other constitutional duty, and that no enabling action by the courts or Congress or the Cab i ­ net was nece s sary.

Since the Vice President had the duty of acting as President, it was argued, in certain contingencies his official discretion extends to the determination of whether such a contingency actually existed; in other words, they were applying a well-known rule that in contingent grants of power, the one to whom the power is granted is to decide when the emergency has arisen.

Thus, there is solid basis in law here to argue that the initial decision must be made by the person who is to succeed in power. In this instance it would be the Vice President. This power to so act is very great. Therefore, it must be guarded and very carefully written.

Mr. Chairman, the Eisenhower administration and its Attorneys General were the first to come to grips with this question of disability. They offered legislation to amend the Constitution to the U.S. Congress, and Attorney General Herbert Brownell, succeeded by Attorney General Rogers, repeatedly asked the Congress to enact it in order to come to gr i ps with this most serious problem.

The Constitution, as we know, already provides, with respect to the Presidency, that "in the case of removal, death, resignation, or inability to disc h a r ge the powers and duties of the office the same shall devolve upon the Vice P r es i dent One would think that language reason­ .ably clear. But the fact is that it has not been clear. It has not been sufficient to resolve the problem of deciding the terrible question of when does power pass from a crippled President to a Vice President and when can a President recapture power. There are questions so delicate and so difficult of resolution that it requires precise and exact language in a constitutional amendment. If we do not have it, then we may have the problem all over again at some future date. I hope we will not, but we must make pro­ · vision for it, and it is high time we did. Mr. Chairman, in our Committee on the Judiciary, in our discussions of this subject, and the real disagreement developed over the language of section 4 of the resolution. Here is the rub. We may see, when we get to amendments, that this difficulty was sufficiently deep to divide the committee.

Members will note that in section 4 it is provided in the event the Vice President, backed by a majority of the Cabinet, decides that the President is incapacitated, he may take over the powers of the Presidency. Stated more specifically, section 4 states that "whenever the Vice President and a majority of the principal officers of the executive departments transmit to the President pro tempore of the Senate and the Speaker of the House a communication declaring that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President."

So far so good. This takes care of the case of a President who is so incapacitated by a stroke · or otherwise that he cannot communicate and voluntarily relinquishes power. Therefore, we have this provision. Then this section goes on to state:

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the power and duties of his office--

So far so good also. This takes care of the case of the President who disagrees with the Vice President about the State of his own health, or who has become restored to health, and believes he is in a position to conduct the powers of the Presidency. But, this section goes ontosayunless the Vice President and a majority of the principal officers of the executive departments, or such other body as Congress may by law provide , transmit within 2 days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, immediately assembling for that purpose if not in session. If the Congress, within 10 days after the receipt of the written declaration of the V i ce President and a majority of the princ.1- p a l officers of the executive departments, or such other body as Congress may by · law prov i de, determined by two-thirds vote of both Houses - that the President is unable to discharge the powers and duties of the office , the Vice President shall continue to disch ar ge the same as Acting President; otherwise the President shall resume the powers and duties of his office.

Now, that word "unless" is the key. It is very significant. The difficulty that some of us had with it in the committee was that we thought it best to provide that the President of the United States, duly elected by the people, should retain power in the event there is a disagreement as to his disability between him and the Vice President, backed by a majority of the Cab i net, unless the Congress should decide otherwise. I have thought that in the case of a dispute the President should retain power unless Congress should reverse the President by a two-thirds vote.

The bill as reported out provides just the reverse, that the Vice President, on his declaration, backed by a majority of the Cabinet, retain power unless he is reversed by the Congress.

The CHAIRMAN. The time . of the gentleman has again expired.